Polski v. City of St. Louis

• Decision Date: 30 March 1915
• Docket Number: No. 16992.,16992.
• Parties: POLSKI v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

175 S.W. 197

264 Mo. 458

POLSKI v. CITY OF ST. LOUIS et al.

No. 16992.

Supreme Court of Missouri, Division No. 2.

March 30, 1915.

Appeal from St. Louis Circuit Court, James E. Withrow, Judge.

Action by Sophie Polski, by her next friend, against the City of St. Louis and others. From a judgment for plaintiff against defendant city and Alexander L. Rohlfing, and in favor of defendant John Schmiedeberg, the city appeals. Affirmed.

William E. Baird and Robert Burkham, both of St. Louis, for appellant. Taylor R. Young, of St. Louis, for respondent.

BROWN, J.

While walking along Wash street in St. Louis city plaintiff was injured by an iron fence falling upon her. This fence stood on the front end of a lot owned by defendant Rohlfing. At the time of the injury the lot was occupied by defendant Schmiedeberg as a tenant. It is alleged in plaintiff's petition that the defendants negligently permitted this fence to become loose upon the posts by which it was supported; that it was insecurely fastened to said posts with rusted wires; that, by reason of said condition, said fence was dangerous to pedestrians passing along said Wash street; and that such dangerous condition of said fence was known to defendants in time to have enabled them to repair the same and place it in a safe condition before it fell and injured plaintiff. The tenant, Schmiedeberg, was not a party to the action when it was originally instituted; but, upon the motion of defendant city, he was made a party defendant under the provisions of section 9801 R. S. 1909. At the trial the court instructed the jury that it could not find a verdict against defendant Rohlfing unless it also found that said Rohlfing at the time he rented the premises to defendant Schmiedeberg agreed to make all outside repairs thereon. The evidence on this point was conflicting. The trial resulted in a judgment against the city and the landlord Rohlfing for $1,500, and in favor of the defendant Schmiedeberg. The city alone appeals, and in its brief relies solely upon the defense that the verdict in favor of defendant Schmiedeberg released the city from liability, citing: Cooley on Torts (3d Ed.) p. 254; Dillon on Municipal Corporations (5th Ed.) § 1728; Shearman & Redfield on Negligence (6th Ed.) § 384; Robbins v. Chicago City, 71 U. S. (4 Wall.) 657, 18 L. Ed. 427; Independence v. Mo. Pac. Ry. Co., 86 Mo. App. 585; and McGinnis v. Railway Co., 200 Mo. 347, 98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. Rep. 661, 9 Ann. Cas 656.

Respondent in her brief merely calls attention to the fact that the alleged error now urged by appellant for reversal was not preserved in its motion for new trial; also, that appellant's contentions are unsound under the rule of law announced in the following cases: Badgley v. St. Louis, 149 Mo. 122, 50 S. W. 817, and Noble v. Kansas City, 95 Mo. App. 167, 68 S. W. 969.

Before considering the alleged error relied upon by appellant, we will ascertain if said error was called to the attention of the trial judge by motion for new trial. Appellant's motion for new trial is as follows:

"That the verdict of the jury herein is against the evidence and against the weight of the evidence ; that said verdict is against the law and against the law under the evidence; that the verdict of the jury, in favor of the defendant John Schmiedeberg, is against the evidence and against the weight of the evidence; that the verdict of the jury, in favor of the defendant John Schmiedeberg, is against the law and the law tinder the evidence; that said verdict is excessive under the law and the evidence; that the court erred in admitting incompetent, irrelevant, and immaterial evidence, offered by the plaintiff, over the objections of this defendant; that the court erred in excluding relevant, material, and competent evidence offered by this defendant; that the court erred in its instructions to the jury, given at the request of the plaintiff, against the objections of this defendant; that the court erred in refusing instructions to the jury as requested by this defendant; that the court erred in its instructions, given of the court's own motion, and against the objections of this defendant."

Under the law of this state (section 1841, R. S. 1909) all motions must be specific. Carver et al. v. Thornhill, 53 Mo. 233, loc. cit. 286; Sweet v. Maupin, 65 Mo. 65, Toe. cit. 68.

The provisions of section 1841, supra, govern motions for new trial. Section 2022, IL S. 1909, does not undertake to designate what the motion for new trial shall contain. Said last-named section merely designates some of the grounds for which a new trial may be granted, leaving us to determine by another section of the Code (section 1841, supra) whether or not the motion for new' trial is sufficiently specific to call to the attention of the trial court the errors which it committed.

In harmony with this view, it was ruled by this court, in Bridge & Iron Co. v. Brewing Association, 129 Mo. 343, loc. cit. 353, 31 S. W. 765, that an assignment of error in a motion for new trial that "the court erred in granting improper instructions asked for by defendant," and also "erred in refusing proper...